Controversial Kerala activist Rehana Fathima, who was booked over a video showing her children painting on her semi-nude body, has approached the Supreme Court challenging the Kerala High Court's judgment which refused her pre-arrest bail.
The High Court had prima facie observed that the video amounted to obscene representation of children for the purposes of 'sexual gratification', attracting offences under Section 13 of the Protection of Children from Sexual Offences Act (POCSO) and Section 67 B of Information Technology Act (IT Act).
Questioning the reasoning of the High Court, she argues that nudity per se cannot be treated as obscenity. In this regard, reliance is placed on the SC precedent in Aveek Sarkar vs State of West Bengal, which held that only sex-related materials "exciting lustful thoughts" can be regarded as obscene.
She states that the video was made and uploaded with the intention of spreading a message to "normalize the female form of body for her children and to not allow distorted ideas of sexualization pervade their minds".
"The petitioner, while being semi-nude, has allowed her body to be used as a canvas by her children to pain on, and there can probably be nobody except a pervert, who would be aroused to seuxal desire by seeing the nature of the work", the petition states.
Challenging the invocation of Section 13 of POCSO by the HC, the petition stated :
"There has been absolutely no indecent or obscene representation of a child in this case - in fact, they merely paint in an expressionless manner as children are wont to do. It is therefore impossible to conclude that any child was used for sexual gratification".
The video featuring the children of Rehana Fathima - a boy aged 14 years and a girl aged 8 years - had caused widespread outrage, leading to registration of FIRs against her alleging obscene representation of children.
Her application states that the following issues arise in the matter in the context of personal liberty under Article 21 of the Constitution :
- Whether female nudity(even when not visible) per se constitutes obscenity.
- Whether children painting on their mother's body can be concluded to be "sexual gratification" and "child abuse" under these stringent laws.
Proceedings in HC
Seeking pre-arrest bail from High Court, Rehna Fathima contended that her acts were intended to enable her children to view body and body parts "as a different medium altogether rather than seen it as a sexual tool alone". She said that she had launched a campaign called "Body Politics and Art" to bring more open discussion on body and sexuality and that the criminal case against her was a result of the moralistic public outcry of the society.
She stated that if children grow up seeing natural woman bodies, their minds will be liberated of hyper-sexualization of women.
"No child who has grown up seeing his mother's nakedness and body can abuse another female body. Therefore, vaccines against these false preceptions and expectation about women's body and sexuality should be initiated from home itself", she said in a note submitted before the High Court.
Rejecting her arguments, Justice PV Kunhikrishan of HC observed in the order passed on July 24 :
"Prima facie, I am of the opinion that the petitioner uses the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they are painting on a naked body of their mother"
After watching the video in question, the Court observed that "the expression of the petitioner, while the children are painting on her breast, is also important".
The Court said that custodial interrogation of the petitioner was required to ascertain if the use of children in the video was for "sexual gratification".
Further, the Court said that it cannot rule out the offence under Section 67B of IT Act, which relates to facilitating abusing of children online.
The Court reiterated that it cannot agree with the contention of the petitioner that she was imparting sex education.
"..if this painting on the naked body of the petitioner happened inside the four walls of the house of the petitioner, there cannot be any offence. After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video. The petitioner, when shot and uploaded these videos in social media, she also claims that she wants to teach sex education to the children in the society. I cannot accept this stand of the petitioner".
Justice Kunhikrishnan further said that after seeing the video, he cannot say that there is no obscenity involved :
"I place myself in the position of the petitioner and from the view point of the viewers of every age group in whose hands this video is reached by uploading the same by the petitioner. After applying my judicial mind, I am not in a position to say that, there is no obscenity in the video when it is uploaded in the social media".